Page:Federal Reporter, 1st Series, Volume 3.djvu/426

0. B. xj. P. B. 00. V. yr. v. telecibaph oo. 419 �Now, Judge McCrary bas held that the contract by which the last-named oompany leased its telegraph Une to the Atlantic & Pacific Telegraph Company, and divested itself of the right to manage and control the same, and fix rates thereon, was tdtra vires and illegal. �He says, after citing the decision of the snpreme court in ThowMS T. Wegt Jersey Railroad Co.: �"In my judgment the act of Jnly 1, 1862, and its amend- ments, must be construed as chartering the Union Facifio Bailroad Company, and devolving upon it individuaUy and personally the power and duty of constructing, operating, and maintaining a Une of telegraph as well as a railroad. * * • This power conferred was personal, and oarried with it a duty and an obligation which could not be transferred." �This reasoning is equally applicable to this case, as the plaintifF stands on an equal footing in ail respects with the Union Pacific Company, and for this motion I shaU adopt Judge McCrary's construction of these c on tracts. This con- tract being void, had the railroad Company in this case the right to repossess itself of the telegraph Une, and exclude the defendant therefrom, without process of law ? �In the Omaha case the circuit judge held that that Com- pany could not. The seizure of property from the possession of another, even though the title and right of possession be in the taker, at so early an hour as 2 o'clock in the moming — as was the case here — is not calculated to create the most favorable impression on a court of equity, and it raises a doubt whether such proceedings are prompted solely by a quickened conscience of duty to the government or the pub- lic, especially when that conscience has suddenly awakened from a Bip Van Winkle sleep of 13 years. �It is contended by the defendant, with much force, that, even though this contract be void, the plaintifiF had no legal or equitable right to take possession of the property, against defendant's consent, without legal proceedings, and the more 00 as a part of the property taken, to-wit, 12 instrumenta and one wire, were, at least, the sole property of the defend- ant. ����